Wiggins v Clarke

The appeal in *Wiggins v Clarke* concerned an application by the claimant for leave to commence proceedings out of time under section 52(4) of the *Motor Accidents Act 1988* (NSW). The claimant sought to pursue a claim for damages arising from a motor accident that had occurred more than three years prior to the application. The primary judge had refused to grant this leave, leading to the present appeal.

The Court of Appeal was required to determine whether the claimant had provided a full and satisfactory explanation for the delay in commencing proceedings. Further, the court had to consider whether the claimant had demonstrated a lack of forensic diligence, and crucially, whether it would be unjust to the opponent to allow the claim to proceed given the passage of time.

The Court of Appeal found that the primary judge had erred in refusing leave. Their Honours applied the principles governing applications under section 52(4), focusing on the need for a satisfactory explanation for the delay and the absence of forensic lack of diligence. The court concluded that, on the facts before it, it was not unjust to the opponent to permit the claim to be pursued. Consequently, the appeal was upheld, the orders of the primary judge were set aside (except for costs of that hearing), and leave was granted to the claimant to commence proceedings and file a statement of claim within a specified period.